5.  The applicant was born in 1959 and is currently detained in Berlin‑Tegel Prison.
6.  In 1995 the Braunschweig District Court convicted the applicant of attempted coercion and attempted extortion of a fourteen-year-old girl and three counts of sexual abuse of children by exhibitionist acts. It sentenced him to one year and three months’ imprisonment and granted probation.
7.  On 26 November 1997 the Berlin Regional Court convicted the applicant, inter alia, of rape of a woman and of sexual coercion and sexual abuse of a nine-year-old girl and of two ten-year-old girls in their respective apartments, combined with aggravated extortion in one case and aggravated robbery in the remaining three cases. It sentenced him to nine years and six months’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraph 40 below).
8.  The Regional Court, having consulted a neurologic and psychiatric expert, K., found that the applicant, who had confessed to the offences, had acted with full criminal responsibility, but suffered from a dissocial and narcissistic personality disorder and a sexual deviation which necessitated psycho-therapeutic treatment. He had a propensity to commit serious offences, in particular sexual offences, and was therefore dangerous to the public.
9.  On 1 November 2007 the Berlin Regional Court ordered the execution of the preventive detention order in respect of the applicant. As regards the applicant’s continuing dangerousness, it referred to the report dated 29 May 1997 drawn up by psychiatric expert K. in the 1997 criminal proceedings. It considered the conclusions in that report to be still valid as there had not been any significant changes in the applicant’s personality and attitude, the applicant having refused to make any therapy in prison addressing his offences and the deficiencies in his character. As, in these circumstances, the preventive detention order could clearly not be suspended, it was unnecessary to obtain a new expert report (Article 463 § 3, third sentence, read in conjunction with Article 454 § 2 of the Code of Criminal Procedure; see paragraph 44 below). The Berlin Court of Appeal, endorsing the reasons given by the Regional Court, confirmed that decision on 21 December 2007.
10.  Since 24 December 2007 the applicant, having served the full sentence imposed on 26 November 1997 by the Berlin Regional Court and the sentence imposed in 1995 by the Braunschweig District Court (the suspension on probation having been revoked), has been in preventive detention in Berlin‑Tegel Prison.
11.  On 18 May 2009 the Berlin Regional Court dismissed a request made by the applicant under Article 458 § 1 of the Code of Criminal Procedure (see paragraph 43 below) to be released from preventive detention. The applicant had argued that his preventive detention was based on unconstitutional legal provisions.
12.  On 9 July 2009 the Berlin Court of Appeal dismissed the applicant’s appeal against that decision.
13.  By two letters dated 29 September 2009 the applicant asked the Berlin Public Prosecutor’s Office and the Berlin Regional Court to inform him on the progress of the proceedings under Article 67e of the Criminal Code (see paragraph 42 below) for review of whether the further execution of the preventive detention order against him was necessary. He requested to appoint him a lawyer and to consult an expert on his dangerousness. He repeated his inquiry with the Regional Court by letter dated 7 November 2009.
14.  On 9 November 2009 the Berlin Regional Court asked the Berlin Public Prosecutor’s Office to obtain the information necessary for the conduct of the review proceedings.
15.  On 11 November 2009 the Berlin Public Prosecutor’s Office, having received the case-file containing documents on the execution of the applicant’s penalty from the Berlin Regional Court, asked the Berlin‑Tegel Prison authority to make a statement on the applicant’s situation and development in preventive detention. That request was not received by the said authority.
16.  On 17 November 2009 the Berlin Public Prosecutor’s Office informed the applicant that it would submit the case-file to the Regional Court once the Berlin‑Tegel Prison authority had made their necessary statement.
17.  By letter dated 2 December 2009, which was received by the Berlin‑Tegel Prison authority on 17 December 2009, the Public Prosecutor’s Office reiterated its request for a statement. It further made a copy of the file containing documents pertinent to the execution of the penalty for its own further use and sent the case-file to the Berlin Regional Court. The Regional Court received the file on 14 December 2009; the file was transferred to the competent chamber of the Regional Court on 29 December 2009.
18.  In the meantime, on 23 December 2009 the Berlin Court of Appeal dismissed a request made by the applicant in parallel proceedings to release him on 24 December 2009. The applicant had argued that the proceedings under Article 67e of the Criminal Code for review of whether his preventive detention was to continue had not been concluded within the statutory two‑year time-limit, which had expired on that day. Referring to the Federal Constitutional Court’s case-law (see paragraph 46 below), the Court of Appeal found that a potential violation of the constitutional right to liberty did not automatically warrant the applicant’s release from preventive detention. The interruption of the applicant’s preventive detention could only be ordered in proceedings under Article 458 of the Code of Criminal Procedure. The court therefore transferred the applicant’s request to the Public Prosecutor’s Office, before whom such proceedings had to be instituted.
19.  By letter dated 28 December 2009 the Berlin‑Tegel Prison authority submitted its statement to the Berlin Public Prosecutor’s Office. It recommended not suspending the further execution of the applicant’s preventive detention and not granting probation. As the applicant had not reflected on his offences and had not made any therapy, there was nothing to indicate that he was no longer dangerous to the public. It submitted that necessary therapeutic measures had not been carried out because the applicant did not trust the prison staff and had explained to be ready for treatment only with a therapist in whom he could trust fully. In 2002 the applicant had not been transferred to a social therapeutic institution because it appeared that the applicant, who had to be and could be treated, lacked sufficient motivation to undergo treatment. In 2006 the applicant had started monthly conversations with the psychological counselling service in prison. However, in view of the duty to treat information given by the applicant confidentially, it was unknown whether there had been any resulting positive developments. As the last report by expert K. had been drawn up in 1997 and the applicant had become older since then, the prison authority considered it useful to obtain a fresh expert report in order to examine whether there had been any changes in the applicant’s personality, even though such changes had not been observed in prison.
20.  On 30 December 2009 the Berlin Regional Court ordered that the file containing documents pertinent to the execution of the penalty be sent to the Berlin Constitutional Court on the latter’s request as the applicant had requested his release by way of an interim measure by that court. The Berlin Regional Court further appointed the applicant a counsel whom it granted access to the case-file. The applicant’s counsel consulted the file in early January 2010.
21.  On 8 January 2010 the Berlin Public Prosecutor’s Office dismissed the applicant’s request under Article 458 of the Code of Criminal Procedure to be released from preventive detention. The applicant had claimed that his preventive detention was no longer lawful and thus violated his right to liberty. He had complained that the courts dealing with the execution of sentences had failed to review the necessity of his continuing detention within the statutory time-limit under Article 67e of the Criminal Code. The Public Prosecutor’s Office stated that the applicant could only be released pending the review proceedings before the Regional Court if these proceedings had been delayed contrary to the rule of law and if interests of public security did not outweigh the applicant’s interests. Having regard to the serious offences the applicant had committed, the public interest in being protected from dangerous offenders outweighed his interest in personal liberty.
22.  In its statement of the same day, the Berlin Public Prosecutor’s Office requested the Regional Court to order the continuation of the applicant’s preventive detention and sent the Berlin-Tegel Prison authority’s statement to that court.
23.  On 14 January 2010 the Regional Court, having been returned the case-file from the Berlin Constitutional Court and having consulted the applicant’s counsel, fixed the hearing for review of the necessity of the applicant’s continuing preventive detention for 20 January 2010.
24.  The applicant subsequently asked the Regional Court to examine his request for release under Article 458 § 1 of the Code of Criminal Procedure in the hearing scheduled on 20 January 2010.
25.  On 20 January 2010 the Berlin Regional Court, having heard the applicant and his counsel in person, ordered the applicant’s preventive detention to continue and dismissed his request to interrupt the execution of that detention.
26.  The Regional Court found that the execution of the preventive detention order against the applicant could not be suspended on probation as it could not be expected that the applicant would not commit any further unlawful acts on his release (Article 67d § 2 of the Criminal Code; see paragraph 41 below). Having regard to the applicant’s conduct in prison and his written and oral statements before the court, it was likely that he would reoffend on his release. The applicant kept questioning the lawfulness of his preventive detention and of the underlying proceedings, considered the prison staff and the psychiatric expert consulted in the criminal proceedings as incompetent liars and was persistently unwilling to reflect on his offences. It was therefore not justified to make him start a social therapy. Having regard to these circumstances, the Regional Court did not consider it necessary to consult a psychiatric expert on the applicant’s dangerousness.
27.  Having regard to the foregoing, the Regional Court further declined to order an interruption of the execution of the preventive detention order against the applicant (Article 458 §§ 1 and 3 of the Code of Criminal Procedure). Relying on the Federal Constitutional Court’s case-law (see paragraphs 45-46 below), it found that the fact that the time-limit for review of the applicant’s detention under Article 67e §§ 1 and 2 of the Criminal Code had been exceeded by 27 days did not automatically warrant the applicant’s release. It considered that after receipt of the case-file, it had conducted the review proceedings speedily, having regard to the applicant’s constitutional right to liberty. It therefore had not displayed an unjustifiable disrespect in relation to the applicant’s procedural rights under Article 67e of the Criminal Code, which safeguarded his right to liberty, within the meaning of the Federal Constitutional Court’s case-law. It noted that the delays had in part been caused by the fact that the first request of 11 November 2009 for a statement sent by the Public Prosecutor’s Office to the Berlin-Tegel Prison had not been received by the latter.
28.  By letter dated 1 February 2010 the applicant, represented by counsel, lodged an appeal against the Regional Court’s decision, which he reasoned by submissions dated 12 March 2010. He complained about the Regional Court’s failure to draw any consequences from the fact that the time-limit under Article 67e of the Criminal Code for review of his preventive detention had been exceeded as a result of delays caused by the Public Prosecutor’s Office.
29.  On 17 June 2010 the Berlin Court of Appeal dismissed the applicant’s appeal. It endorsed the Regional Court’s finding that it could not be expected that the applicant would not commit any further unlawful acts on his release. Therefore, the continuation of his preventive detention had to be ordered (Article 67d § 2 of the Criminal Code). It found that the applicant had committed serious offences against the sexual self‑determination of others. The execution of the preventive detention order could therefore only be suspended and probation be granted if it was shown that the applicant had reflected on deficits in his personality and on his offences so that there was little risk that he reoffended. The statement of the Berlin-Tegel Prison authority and the applicant’s submissions to the court showed, however, that this was not the case and that he kept minimizing his crimes. As the applicant’s statements had clearly disclosed his continuing dangerousness, it was not yet necessary to consult an expert. The court referred to its decision of 21 December 2007 on that point.
30.  The Court of Appeal further found that the applicant’s appeal against the Regional Court’s decision under Article 458 of the Code of Criminal Procedure not to interrupt the execution of his preventive detention for failure to comply with the time-limit under Article 67e § 2 of the Criminal Code had become devoid of purpose. The Regional Court had ordered the continuation of his preventive detention in the meantime. The applicant’s preventive detention had also not become unlawful prior to the said decision of the Regional Court. It was based on the Berlin Regional Court’s judgment of 26 November 1997 convicting the applicant and ordering his preventive detention and on the Berlin Regional Court’s decision dated 1 November 2007 ordering the execution of that preventive detention order.
31.  The Court of Appeal conceded that the time-limit for review of the necessity of the applicant’s further preventive detention under Article 67e §§ 1 and 2 of the Criminal Code had been exceeded by 27 days. The delay had been caused by the belated submission of a statement by the Berlin‑Tegel Prison authority following a late reminder of the Berlin Public Prosecutor’s Office, whose first request for a statement had not been received by the prison authority. The procedure followed did not disclose a flagrant irregularity. It did not, therefore, entail the unlawfulness of the applicant’s preventive detention between the deadline for review of the applicant’s preventive detention on 24 December 2009 and the Regional Court’s decision on 20 January 2010.
32.  Relying on the Federal Constitutional Court’s case-law (see paragraphs 45-46 below), the Court of Appeal further found that the failure to comply with the time-limit under Article 67e of the Criminal Code had not violated the applicant’s constitutional right to liberty. Having regard to the procedure followed and the fact that the time-limit had been exceeded only by several days, the Regional Court had not unjustifiably disrespected the said provision of the Criminal Code, which safeguarded the constitutional right to liberty. That court thus had not displayed a fundamentally wrong view on the importance of that constitutional right. In any event, even a breach of the constitutional right to liberty would not have warranted the applicant’s release. Having regard to the seriousness of the applicant’s offences, the public interest in being protected from such offences would have outweighed the applicant’s interest in his personal liberty.
33.  The applicant, who was no longer represented by counsel, subsequently lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Berlin Regional Court dated 20 January 2010 and of the Berlin Court of Appeal dated 17 June 2010. He argued, in particular, that his constitutional right to liberty had been violated. Since 24 December 2009 there was no longer a legal basis for his preventive detention, the deadline under Article 67e of the Criminal Code for review of the necessity of his continuing preventive detention having expired. He further complained that the proceedings before the courts dealing with the execution of sentences had been unfair as the courts had not sufficiently established the facts on which they had based their conclusion that he was still dangerous to the public. In particular, they had been unable to make a prognosis on his dangerousness without having consulted a psychiatric expert recently, the last expert report drawn up by expert K. dating from 1997.
34.  On 16 September 2010 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1566/10).
35.  In subsequent review proceedings under Article 67e of the Criminal Code instituted in August 2011, the Berlin Regional Court appointed an expert in October 2011 in order to assess the applicant’s dangerousness. The applicant refused to have himself examined by the expert in these proceedings and lodged several motions for bias.
36.  On 22 March 2012 the Berlin Regional Court ordered the applicant’s preventive detention to continue.